Aubrey Lee Brothers Ii v. Chita Buenafe; N. Ramirez; T. Hood

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AUBREY LEE BROTHERS II,
Plaintiff-Appellant,
v.
CHITA BUENAFE; N. RAMIREZ; T.
HOOD,
Defendants-Appellees,
and
N. FLORES,
Defendant.
No. 21-16810
D.C. No. 1:17-cv-00607-DAD-HBK
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted November 15, 2022**
Before: CANBY, CALLAHAN, and BADE, Circuit Judges.
California state prisoner Aubrey Lee Brothers, II, appeals pro se from the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
NOV 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
deliberate indifference to his serious medical needs. We have jurisdiction under 28
U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th
Cir. 2004). We affirm.
The district court properly granted summary judgment because Brothers
failed to raise a genuine dispute of material fact as to whether defendants caused an
orbital wall fracture during a dental procedure or were deliberately indifferent to
his pain. See Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014) (stating
that a difference of opinion between a physician and a prisoner concerning
appropriate medical care does not amount to deliberate indifference); Toguchi, 391
F.3d at 1057-60 (explaining that a prison official is deliberately indifferent only if
he or she knows of and disregards an excessive risk to inmate health; medical
malpractice or negligence does not amount to deliberate indifference); see also
Safari Club Int’l v. Haaland, 31 F. 4th 1157, 1176-77 (9th Cir. 2022) (concluding
that bare assertions unsupported by evidence in the record are insufficient to
survive summary judgment). Although the district court mistakenly noted that
Brothers did not attach any exhibits to his opposition to summary judgment,
Brothers did in fact submit exhibits and the district court reviewed them before
issuing its order.
Brothers’s motion to accept his opening brief in place of the reply brief

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(Docket Entry No. 26) is granted.
AFFIRMED.

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